HIGH COURT OF ORISSA: CUTTACK RVWPET No.232 of 2012 In the matter of an application for review of the judgment dated 06.04.2012 passed by this Court in M.A. No.373 of 2001. ---------National Insurance Company Limited, Cantonment Road, Cuttack. … Petitioner … Opp. Parties -VrsMaheswar Das and others For Petitioner : For Opp. Parties : M/s. B.K.Nayak & D.K.Mohanty M/s Dr.T.C.Mohanty, Sr. Advocate S.C.Swain, S.Mohanty, A.K.Rout, S.K.Pattnaik, N.Sethy, A.K.Behura, S.Patra and J.Mohanty ----------- P R E S E N T: THE HON’BLE MR. JUSTICE B.N. MAHAPATRA -------------------------------------------------------------------------------------Date of Judgment:
10. 05.2013 -------------------------------------------------------------------------------------B.N. Mahapatra, J.This Review Petition has been filed seeking review of the judgment dated 06.04.2012 passed by this Court in M.A. No.373 of 2001.
2. The petitioner seeks review of the impugned judgment on a short point, i.e., if the Hon’ble Single Judge of this Court applied 14 multiplier for the purpose of determining the compensation on the basis of judgment of the Hon’ble Supreme Court in the case of Smt. Sarla Verma and others Vs. Delhi Tranport Corporation and another, 2009 (2) TAC 67.(SC), the Hon’ble Single Judge should have deducted 50% of the 2 income of the deceased towards his personal expenses instead of deducting 1/3rd as held by the Hon’ble Supreme Court in the case of Sarla Verma (supra).
3. Learned counsel for the Review petitioner referring to averments made in paragraphs 7 and 8 of the Review Petition, submitted that this Court has rightly relied upon the case of Smt. Sarla Verma (supra) to adjudicate the appeal. This Court while deciding M.A. No.373 of 2001 has determined the income of the deceased at Rs.40,000/- per annum as per decision of the Hon’ble Supreme Court in the case of Lata Wadhwa Vs. State of Bihar, (2001) 8 SCC 19.and applied multiplier 14 on the basis of the judgment of the Hon’ble Supreme Court in the case of Smt. Sarla Verma (supra). However, while making deduction towards personal expenses of the deceased who was a bachelor, this Court has ignored the principle laid down in Smt. Sarla Verma (supra) and deducted 1/3rd instead of 50% of the income towards personal expenses. Therefore, he prayed for review of the judgment by re-determining compensation deducting 50% of the income of the deceased towards his personal expenses as held by Hon’ble Supreme Court in Smt. Sarla Verma (supra).
4. Dr.T.C.Mohanty, learned Senior Advocate appearing on behalf of the claimant-appellants submitted that as per decision of the Hon’ble Supreme Court in Smt. Sarla Verma (supra) so far deduction towards personal expenses in case of a bachelor is concerned is not always 50% of the income. There is some exception which is indicated in paragraph 15 of Smt. Sarla Verma (supra) wherein it is held that where the family of the bachelor is large and large number of younger non- 3 earning sisters and brothers are there, his personal living expenses may be restricted to one-third and contribution to the family is to be taken as two-third. Dr.Mohanty further submitted that in the instant case the deceased left behind his widowed grandmother, namely, Kalpana Das, unmarried non-earning minot sister Nirupama Das, aged about 14 years, unmarried non-earning minot sister Shantilata Das, aged about 12 years, which is evident from averments made at Column 22 of the claim petition and the deceased was the only son. Therefore, deduction of 1/3rd instead of 50% towards personal expenses is quite justifiable in the present case. Hon’ble Supreme Court in Bilkish Vrs. United India Insurance Company Ltd. and another, (2008) (4) SCC 25.held that as the deceased was a bachelor, he could not have spent more than 1/3 rd of the total income for personal use and rest of the amount earned by him would certainly go to the family kitty. This view has been made applicable by the Honble Supreme Court in Mohan Singh Vrs. Kashi Bai and others, 2009(2) TAC 31.(SC). Similarly, in Oriental Insurance Co. Ltd. Vrs. Deo Patodi and others, 2009(3) TAC 61.(SC), the Hon’ble Supreme Court held that the deceased was aged about 22 years and only son of the claimants, who had parents and unmarried sisters. Hence, one-third was deducted towards personal expenses. Placing reliance on the judgment of the Hon’ble Supreme Court in Santoshi Devi Vrs. National Insurance Company Ltd. and others, 2012 (3) TAC 1 (SC), Dr.Mohanty further submitted that if the review petition is allowed the amount of compensation should be enhanced on account of future prospects of the deceased which has not been considered in the impugned judgment. 4 Further placing reliance on the judgment of the Hon’ble Supreme Court in Amrit Banu Shali Vs. National Insurance Company Ltd., 2012 AIR SCW 3901.learned Senior Advocate submitted that the age of the bachelordeceased should be taken into consideration for the purpose of application of multiplier which in the present case should be 19 intstead of 14.
5. Undisputed facts are that this Court in the impugned judgment following the judgment of the Hon’ble Supreme Court in the case of Lata Wadhwa (supra) determined the annual income of the deceased at Rs.40,000/- and further applying the principle laid down by the Hon’ble Supreme Court in the case of Smt. Sarla Verma (supra) applied multiplier 14 for the purpose of computation of compensation. Review petitioner has no grievance as regards estimation of income at Rs.40,000/-. His short grievance is for deduction of 50% instead of 1/3rd of the income of the deceased towards his personal expenses as held by the Hon’ble Supreme Court in Smt. Sarla Verma (supra).
6. At this juncture, it is necessary to reproduce paragraph 15 of Smt. Sarla Verma’s case (supra) which is relevant for our purpose.
“15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelor, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be 5 considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”
. (underlined for emphasis) 7. The contention of Dr.Mohanty, learned Senior Advocate is that the deceased has left behind him two minot non-earning unmarried sisters and also grandmother. The Column-22 of the certified copy of the claim petition filed before the Tribunal under Section 166 of the M.V. Act reads as follows:“22. Other legal representatives : If any of the dead with their address & relationship with the person died Undoubtedly what would 1.Khulana Das(grandmother) aged about 76 years.
2. Nirupama Das, aged about 14 years, sister 3. Santilata Das, aged about 12 years, sister”. be a just and reasonable compensation that always depends upon the fact situation of each case. There cannot be any hard and fast rule. The motto of each Court should be to award just compensation. Hon’ble Single Judge while computing the income has also taken into consideration that if the deceased had not died in the motor accident on the fateful day, he would have been employed as either an Officer or an employee in the Government or 6 Private establishment and undisputedly he would have earned a sizeable sum during his life time which is not the basis taken by the Tribunal for computation as it would be of future earning of the deceased. The Hon’ble Supreme Court in the case of Deo Patodi and others (supra), held that the deceased being 22 years old and the only son of the claimants and had unmarried sisters, he would have got 1/3rd of his income towards personal expenses and spent two-third of his earning for his family.
8. In view of the above, no case for review under Order 47, Rule- 1, CPC is made out in this case and accordingly, the review petition is dismissed. ……………………….. B.N. Mahapatra,J.Orissa High Court, Cuttack The 10TH May, 2013/ss